Judicial Review in an Objective Legal System, by Tara Smith. Cambridge: Cambridge University Press, 2015. 293 pp. $35.99.
Editor’s note: This review was originally published in Judicature 100, no. 2 (May 2016) and is republished here with permission.
Author's note: I would like to acknowledge and thank Josh Windham for his substantial contributions to this review.
Tara Smith asks, “How should courts interpret the law? By fidelity to the text? To the will of the people? To certain moral ideals?” In Judicial Review in an Objective Legal System, Tara Smith, philosopher of law and professor at the University of Texas at Austin, provides fresh new answers to these long-standing questions. By cutting straight to the core of objectivity and its place in a legal system, Smith lays fertile ground for assessing the arena’s major theories of judicial review, emerging ultimately with a theory of interpretation that solves the problems inherent in the current approaches.
Though all its components cannot be covered here, several features of Smith’s account warrant special attention: (1) She takes time to clarify why we should care about judicial review; (2) she sharpens our grasp of objectivity and its role in judicial review; (3) she succinctly surveys the major theories of review, revealing their subjectivity; (4) she presents a fresh theory of her own that embraces objectivity’s demands; and (5) she provides her uniquely philosophical approach to judicial review, which makes it more accessible, not less.
1. Why we should care about judicial review.
Smith spotlights the high stakes of judicial review. She describes government in essential terms as that body in our society that enjoys “exclusive authority” to “coerce compliance with its edicts” (p. 2). Its laws may compel us “by guns, shackles, prisons” (p.2). The reason Supreme Court vacancies draw national attention and scholars devote endless pages to debating interpretive methodology, she explains, is that judicial review is one of our legal system’s chief means of directing this coercive power. She presents judicial review in this light—not as an academic exercise but as a “potent instrument” for protecting—or not—the rights of real, flesh-and-blood people (p. 3).
2. A sharper grasp of objectivity and its role in judicial review.
The novelty of Smith’s approach rests on her clarifying portrait of objectivity, which she describes as “a method of using one’s mind so as to apprehend accurately the object of one’s concern” (pp. 6–7). We need such a method, she explains, for three basic reasons: (1) Reality is absolute; (2) human thought is volitional; and (3) human thought is fallible (p. 16). Because rational thought does not come automatically and often takes hard work, we require a disciplined style of thinking to “get reality right” (p. 21).
Because reality will not simply comply with our wishes, our methods must comport with reality—if we are to achieve our goals. An objective thinker is “reality-guided and logic-anchored” (p. 22). He proceeds by all the relevant evidence, to the best of his honest knowledge, to reach accurate conclusions. While Smith points to the scientific method as perhaps the most well recognized example of this approach (p. 19), she calls objectivity “a thoroughly familiar concept, routinely used, of which most people carry a working understanding” (p. 17).
Crucially for Smith’s account, ends matter (p. 21). One cannot get the relevant reality right without first knowing just what one seeks to accomplish. This applies in all spheres of life: How one measures a substance or grades students or prescribes medications will depend on what one is measuring or grading or treating, and why (p. 22). Smith suggests that objectivity in the law works in the same way. . . .